Court Upholds Arbitration Clause on MSSSV’S Pre-Answer Motion to Dismiss
Supreme Court Justice Manuel J. Mendez in New York County granted our motion to dismiss plaintiff’s complaint against our client, The Dwight School. The plaintiff, a former teacher at the school, claimed that she was discriminated against based on her national origin pursuant to the broad provisions of the New York City Human Rights Law. The Court agreed with our argument that the discrimination claims fell within the mandatory arbitration agreement in the employment contract, and upheld New York’s strong public policy in favor of arbitration.
Michael A. Miranda and Richard B. Epstein successfully defended this matter.
Defense Verdict for Partner Maurice Savoiardo
MSSSV started 2017 with a defense verdict in a Federal Court discrimination suit. Plaintiff, a former teacher in the City School District of New Rochelle, asserted claims for national origin discrimination pursuant to Title VII, alleging that she was fired from her positon due to her Chinese national origin. Plaintiff claimed that in a meeting with the District’s Superintendent and Human Resources Director days after she was notified of her termination that the Superintendent told her she should go to work in Chinatown, and that the Human Resources Director reinforced the discriminatory animus by telling her that she would be better off working with her own people. Following a five day trial in the Southern District, the jury returned a verdict in the school’s favor. Maurizio convinced the jury that the statements were not made, and that the plaintiff was terminated for her poor performance as a teacher. Altman v. City School District of New Rochelle 2.3.17.
MSSSV Wins Summary Judgment in Westchester County
Judge Linda Jamieson of the Supreme Court, Westchester County, granted our motion for summary judgment on the ground that the plaintiff did not sustain a “serious injury” as a result of the subject accident. The plaintiff, in her 20s at the time of the accident, claimed injuries to her cervical, thoracic and lumbar spines, including herniated and bulging discs. Plaintiff had treated continuously since the July 2011 accident. Plaintiff claimed that she had to substantially reduce her work hours due to the accident, from 50-60 hours per week down to 15-20 hours per week, with a corresponding 55% diminution in her earnings; that she continued, 5 years after the accident, to take prescription pain medication and a muscle relaxant every day; and that she still needed assistance with a number of her activities of daily living.
We established that the plaintiff had sustained soft tissue injuries due to the accident, which had resolved without any residual sequellae, and that the restrictions on plaintiff’s activities were self-imposed. Plaintiff’s medical expert submitted an affidavit in opposition to our motion, in which he stated that plaintiff was permanently disabled due to the accident.
We were able to establish that the permanent disability claimed to plaintiff’s cervical, thoracic and lumbar spines was not significant or consequential, and that plaintiff’s claimed injuries did not meet any of the categories of “serious injury”, as defined in New York’s Insurance Law.
Richard S. Sklarin and Debora J. Dillon of MSSSV’s Westchester office worked on this matter.
MSSSV Partner to Speak on Police Liability Claims
On July 27th, Michael Miranda will be speaking on police liability litigation as part of a Municipal Liability program hosted by NBI. For the program details, please click here.
Another Discrimination Defense Verdict for Steven Verveniotis
MSSSV (partner Steven Verveniotis) obtained a defense verdict - in a federal jury trial where ten witnesses testified - in the case of Karen Crowley v. Oyster Bay-East Norwich Central School District et al, where the plaintiff, a teacher, sued her employer claiming discrimination based upon age in violation of federal and state law, hostile work environment, and unconstitutional retaliation in response to protected speech. After the close of plaintiff's case, the Judge dismissed the claims of hostile work environment and unconstitutional retaliation in response to protected speech, as well as dismissed the claims asserted against the Assistant Superintendent. The jury then, on its verdict, rejected the claims of state and federal age discrimination as against the school district and as against the Superintendent of Schools.
MSSSV Defense Verdict
MSSSV (partner Steven Verveniotis) obtained a defense verdict at the jury trial of the case Browne v. Oyster Bay-East Norwich Central School District et al, where the dispositive question: "Has Plaintiff proved by a preponderance of the evidence that the Board of Education of the Oyster Bay-East Norwich Central School District discriminated against Plaintiff on the basis of Plaintiff's gender" was answered with a resounding "No." The plaintiff, teacher Robert Browne, had claimed that charges leveled against him by the Board as to improprieties with respect to grading a 2006 Regents exam were motivated by his gender, but the jury was convinced otherwise by proof that the School District did not make decisions based upon anyone's gender but upon the information available to the Superintendent and the Board as to the conduct of each individual involved in the grading of the 2006 Regents exam.
Maurice Savoiardo Named Partner
We are very pleased to announce that Maurice has been made a partner.
He is a valuable member of our employment/civil rights team, having been with the firm since 2009. He has been practicing law for over 20 years. He has successfully tried cases and secured numerous outstanding results for the insurance defense community during that interim.
2015 Insurance Coverage Recap
Partner Steve Verveniotis turned in another superlative year, winning a number of significant coverage decisions for insurers across the country. A sampling of his success is set forth below:
In Netherlands Insurance Company v US Underwriters Ins Co., 14 Civ 3568 (NSR) (JSM), Judge Roman – in December 2015 – upheld, by summary judgment, a disclaimer of coverage pursuant to an exclusion for injuries to employees of a contractor as applicable to all insureds, regardless of which insured hired the contractor. The named insured under the policy was a tenant which had hired the contractor, which was the employer of the injured party who had been electrocuted while working on premises being renovated by the tenant as lessee readying a store for opening. The property owner was an additional insured under the policy. US Underwriters disclaimed coverage both to the tenant and the property owner when the worker sued both, but the property owner (through its own insurer) filed suit against US Underwriters claiming that the exclusion should not apply to the owner because it did not hire the contractor/employer of the injured party. The Judge ruled that the “any insured” language of the exclusion allows for application of the exclusion to the additional insured notwithstanding the fact that it was the named insured which had hired the contractor/employer of the injured party.
In Nationwide Mutual Ins. Co. v US Underwriters Ins. Co., Sup NY 161856/2014, Justice Reed – in November 2015 – dismissed, on res judicata and collateral estoppel grounds, an attempt by Nationwide to collect on a $952,000 judgment against the named insured of US Underwriters on a construction accident claim at a work site involving contractors insured by each of the two insurers. In a prior lawsuit, US Underwriters had obtained a ruling that it had no obligation to cover the claim based upon late notice and the employee exclusion in its policy. Since Nationwide and its insured were parties to the prior action, the Court ruled that the second action filed by Nationwide to collect on the judgment recently obtained was barred in that Nationwide could not re-litigate the prior factual finding and decisions of law as to the disclaimer based upon late notice and the employee exclusion.
In Vandanyan v United National Specialty Ins. Co., 12 Civ 4329 (FB) (JO), Judge Block - in October 2015 – dismissed a lawsuit filed by a plaintiff seeking to recover from the insurer of a property owner the balance of a judgment against the property owner in excess of $750,000. The insurer, United, had disclaimed for late notice and the plaintiff had obtained a default judgment against the insured property owner and then an assignment of rights to pursue the insurer in the insured’s position as part of a settlement with the insured. The Court ruled that the payment by the insured as part of the settlement and assignment of rights voided the plaintiff’s ability to pursue the insurance company for the balance in that the plaintiff has provided a general release to the insured and discontinued the underlying lawsuit with a satisfaction of judgment. Given the inability of the plaintiff to collect anything after settlement and release of the insured, the Court did not need to address the late notice issue and dismissed the plaintiff’s lawsuit for the $750,000 balance sought to be collected from the insurance company.
In Tower v Einhorn, the Appellate Division Second Department - in September 2015 – denied Tower the ability to enforce a denial of coverage that was challenged by plaintiffs and co-defendants from the underlying bodily injury action in that Tower had not proven the applicability of its disclaimer grounds as to the insured location by admissible evidence. The fact that Tower’s insured had defaulted in the coverage case was irrelevant to the ability of plaintiffs and co-defendants from the underlying bodily injury action to challenge Tower’s position.
In East Ramapo Central School District v New York Schools Insurance Reciprocal, Sup Nassau 600963/2013, Justice Bucaria - in June 2015 – limited the recovery of an insured school district from its insurer for defense costs as to an underlying lawsuit filed by citizens for the school district’s mismanagement of funds and violation of constitutional rights. The insurance company challenged the school district’s proofs as to payment of legal fees in excess of $2 million, and the Court agreed, ruling the billing to have been exorbitant and the payments to have been improper, limiting the school district’s recovery to $187,500 plus interest for the limited period of time that the insurer was deemed to have been obligated to afford a defense to the school district in the underlying action.
In Mt. Hawley Ins. Co. v Penn-Star Ins Co., Sup NY 161321/2014, Justice Kern – in May 2015 – dismissed a lawsuit whereby Mt. Hawley sought to collect approximately $663,000 from Penn-Star by challenging a disclaimer based upon an exclusion for injury to an employee of a contractor and a prior adjudication upholding that denial of coverage as to Penn Star’s insured. While Mt. Hawley argued that it was entitled now to re-litigate the coverage issue in a collection action as a holder of a judgment against Penn Star’s insured, the Court held that because Mt. Hawley and its insured were parties to the prior adjudication as to the coverage issues, Mt. Hawley was barred now from re-litigating those issues by operation of res judicata and collateral estoppel.
In Menser’s v Harleysville et al, Superior Court NJ, J. McMaster – in April 2015 – sustained a disclaimer of coverage premised upon property damage exclusions applicable to claims grounded upon improper work performed by insured contractor.
Six MSSSV Attorneys Named SuperLawyers
Rich Sklarin and Ondine Slone were named SUPERLAWYERS for 2015. In addition,Mike Miranda, Neil Sambursky and Steven Verveniotis were again selected by this prestigious national organization. Independent nominations and peer research are conducted to be named to this list. Less than 5% of the lawyers in the state are selected. The selections were featured in a special supplement to the New York Times in November of 2015, as well as other publications.
Associate Richard Epstein was also named again as a rising Superlawyer.
MSSSV Secures Defense Verdicts in Excessive Force Case
In Cummings v. Village of Port Chester, MSSSV Westchester partner Rich Sklarin success fully tried an excessive force case twice to fully vindicate several officers and the Village’s Police Department. After a motion for summary judgment at the close of discovery dismissed most of plaintiff’s claims, a jury still had to determine whether the use of a taser to bring the plaintiff into custody was reasonable under the circumstances. During the first Southern District trial in 2014 before Magistrate Smith in White Plains, the jury returned a defense verdict in favor of 2 of the 3 individually named police officers. However, the jury deadlocked after 2 full days of deliberation over whether the third Village officer, who had actually utilized the taser to effectuate plaintiff’s arrest, had used reasonable force. The case was re-tried in February, 2015 before Magistrate Smith and, following a 4 day trial, the jury rendered a unanimous defense verdict in just over an hour in favor of the third officer.
2nd Circ. Revives NYC Law Claim In Age Discrimination Suit
Law360 - February 13, 2015
The Second Circuit Friday vacated a portion of a district court's judgment in an employment suit brought against Columbus Citizens Foundation by a former employee over age discrimination, saying separate claims brought under New York law were not properly reviewed.
In a per curiam decision, the three-judge panel affirmed the Southern District’s dismissal of Hugo Velazco’s claims brought under the federal Age Discrimination in Employment Act, but revived a claim brought under the New York City Human Rights Law, saying the district court did not analyze that claim separately and independently as required.
“In sum, because we cannot confidently conclude that the district court analyzed plaintiff’s NYCHRL claim under the standard applicable thereto, we must vacate the portion of the district court’s judgment related to the plaintiff’s NYCHRL claim,” the decision states.
Velazco had worked for Columbus Citizens Foundation, a nonprofit organization that celebrates Italian-American heritage, as a busboy, dishwasher, waiter and doorman for 22 years, according to the original complaint, which was filed in September 2012 and brought age discrimination claims under city law, state law and the ADEA.
The worker was fired from his doorman position in March 2007 by Columbus general manager and executive chief John Boden — also a defendant in the suit — who accused him of using a member’s vehicle for personal business without authorization, the suit said. Velazco had been asked by police to move a member’s illegally parked vehicle — which he says fell within his job duties — and got caught behind a garbage truck for about 10 to 15 minutes, according to the complaint.
Boden allegedly told another employee at Columbus prior to Velazco’s firing that he would “get rid of him somehow” and had openly referred to him as a “useless old man” during the three previous years, the lawsuit alleged.
Velazco was 62 years old when he was fired by Boden, who was 37 at the time and immediately replaced him with a 25-year-old man, the complaint said.
The district court granted Columbus summary judgment last February on all claims, and Velazco appealed the ADEA and city law claims the following month. The Second Circuit found that the district court should have analyzed the New York City law claim independently and remanded that portion of the judgment for further proceedings.
In a separate summary order, the court said that Velazco had failed to show that animus toward his age was a “but-for cause” of the decision by Columbus to fire him.
“In this case, no reasonable juror could have concluded that animus toward Velazco’s age was the but-for cause of CCF’s termination decision, both because the subordinate who was accused of animus in fact recommended a two-week suspension rather than termination, and because the ultimate decision-maker found the plaintiff’s actions—taking a member’s car out for the apparent purpose of personal shopping — ’egregious,’” it said.
"We appreciate the Second Ciircuit's complete rejection of the federal age discrimination claims, and await Judge Daniels' updated decision on the related city age discrimination claims," Michael A. Miranda of Miranda Sambursky Slone Sklarin Verveniotis LLP, told Law360.
Alexander Coleman, attorney for Velazco, said Friday that the decision was a mixed bag.
“We’re very happy that the city human rights claim has been reinstated and we’re excited to continue litigating that claim,” Coleman said. “We think our client has a very strong case. Obviously we’re disappointed that the court did not reinstate the ADEA claims. We thought we had a strong argument, but the Second Circuit disagreed.”
Velazco is represented by Michael J. Borrelli, Alexander T. Coleman and Jeffrey R. Maguire of Borrelli & Associates PLLC.
Columbus Citizens Foundation is represented by Michael A. Miranda of Miranda Sambursky Slone Sklarin Verveniotis LLP.
The case is Hugo Velazco v. Columbus Citizens Foundation et al., case number 14-842, in the U.S. Court of Appeals for the Second Circuit.
MSSSV Wins Police Excessive Force Case
In Gomez v. Village of Sleepy Hollow, Southern District Magistrate Judge Judith C. McCarthy granted the Village summary judgment in this police excessive force case. The husband and wife Plaintiffs alleged that they were tasered multiple times by several police officers, as well as being punched and kicked in the face and head while handcuffed. Plaintiffs alleged improper training, failure to supervise and the existence of a pattern of excessive force by the Sleepy Hollow Police Department. To support his claim, plaintiff pointed to ten (10) incidents involving one of the police officers in question.
In granting the Village summary judgment, MSSSV convinced the Court that plaintiff failed to establish deliberate indifference by the Police Department towards the use of force by its police officers. Sleepy Hollow provided use of force training and annual taser training to its police officers. So too, MSSSV was able to distinguish the other alleged incidents raised by plaintiff in support of his claim. In this regard, the Court agreed with our position that the alleged incidents of excessive force that occurred after the incident with the plaintiff could not be used to establish the requisite policy. Further, the Court also adopted our position that off-duty incidents involving police officers could not be used to establish a policy, and that the department investigated the other incidents.
We thus avoided a very costly trial in these potentially high exposure Federal cases. Michael A. Miranda and Maurizio Savoiardo worked on the case.
MSSSV Wins Coverage Dispute based on Clear Non-Cumulation Clause
Senior Judge McAvoy of the Northern District of New York granted our motion for summary judgment and dismissed plaintiff insurer’s complaint against our client, Vermont Mutual Insurance Company. This case involved a dispute over coverage for an approximately $800,000 verdict in an underlying lead paint case against the mutually insured landlord. The plaintiff excess insurer alleged that our client, the primary insurer, was liable for the full sum of verdict against the mutual insured because the underlying infant plaintiff was allegedly exposed to lead during three of our client’s policy periods. We successfully argued that our client’s occurrence language and non-cumulation clause unambiguously limited its liability to a single policy – roughly one-third of the verdict. The Court also agreed with our argument that the excess insurer was liable for all pre-judgment interest and ordered the plaintiff to reimburse all interest paid. Michael A. Miranda and Michael T. Cataldo worked on the case for MSSSV.
MSSSV Wins Marina Dispute on Pre-Answer Motion
Judge Briccetti of the Southern District of New York granted our pre-answer motion to dismiss the plaintiff-marina owner's complaint filed against our client, the Town of Carmel and its officials. The Plaintiff marina had alleged that the Town had violated its constitutional rights by bringing a series of actions against them seeking to enforce its zoning code and over-regulating the Plaintiffs' operation of their commercial marina. We successfully convinced the Court that the claims against the Town were barred by the applicable 3-year statute of limitations, despite a recent State Appellate ruling in the marina's favor. Inasmuch as that decision was the only event in the limitations period, the Federal court properly ignored it in its statute of limitations analysis.
Michael A. Miranda and Andrew Lipkowitz worked on the case for MSSSV.
Four MSSSV Lawyers Named SuperLawyers
Michael Miranda, Neil Sambursky and Steven Verveniotis were named SUPERLAWYERS by the prestigious national organization. Independent nominations and peer research are conducted to be named to this list. Less than 5% of the lawyers in the state are selected. The selections will be featured in a special supplement to the New York Times in October 2014.
In addition,senior associate Gabriela Campiglia was named a rising star SUPERLAWYER as well.
MSSSV Wins Summary Judgment in High Exposure Suffolk County Premises Liability Matter
Justice Baisley of the Suffolk County Supreme Court granted summary judgment to our client, Friends of Bradstock (FOB), dismissing plaintiff's Complaint in its entirety in this personal injury lawsuit involving a quadriplegic.
The injured plaintiff had fractured his neck at the annual Labor Day weekend music festival organized by FOB, which was held at a Suffolk County park.
While riding his bicycle towards a marina dock at the conclusion of the festivities, he flipped over his bicycle based upon a gap which was present between the dock and adjacent grassy area.
The Court held that the organizers of the music festival owed no legal duty to the catastrophically injured plaintiff, holding that "there is no issue but that FOB had no legal duty to maintain that County owned premises and had no responsibility to control the dock area where plaintiff's bicycle wheel collided with the wood planked deck. Absent any duty to maintain and control the area where the incident occurred, no legal basis exists to find the defendant FOB responsible for plaintiff's injuries and therefore defendant FOB's motion seeking an order granting summary judgment dismissing the complaint and all cross claims asserted against it must be granted." (see decision)
Richard S. Sklarin worked on this matter from inception.
MSSSV Wins Summary Judgment in Federal Age Discrimination Employment Case Before the Southern District
Judge Daniels of the Southern District of New York granted summary judgment to our client Columbus Citizens Foundation, Inc. regarding its termination of an employee ,after the EEOC had found probable cause that his age was a motivating factor in his dismissal. The Court dismissed all claims of age discrimination under the Age Discrimination in Employment Act and the New York State and New York City Human Rights laws. We were able to establish as a matter of law that the employee had been fired for documented misconduct. The Court adopted our argument that a jury could not find age discrimination was even a motivating factor in the termination without speculation on several levels, and that the nondiscriminatory reasons proffered for the termination by the employer were thus not pretextual.
Michael A. Miranda and Robert Hewitt worked on this matter.
MSSSV wins Article 78 petition for Town of Fishkill
In this action, petitioners were seeking an injunction prohibiting the Town of Fishkill from removing officers from the functional title of a Sergeant and replacing them with officers who had been hired from a competitive civil service list. The Court adopted our argument that the Town could not be estopped from enforcing the law which requires that sergeants be hired from a competitive civil service list. We also convinced the Court that a demotion from a functional title position is not a demotion within the meaning of the Civil Service Laws.
Michael A. Miranda and Maurizio Savoiardo worked on the case.
MSSSV prevails in the First Department
After oral argument, the Appellate Division, First Department unanimously upheld the decision granting summary judgment for MSSSV’s client, Alert Glass & Architectural Metals Corp., in an action involving claims of Labor Law 240(1), 241(6) and 200. Plaintiff sustained an injury when he fell from a ladder while working on the installation of a store front window frame. Alert Glass had contracted with the general contractor for the installation of the doors and windows. Alert Glass, in turn, contracted with plaintiff’s employer, Proper Construction for the installation of the glass. Alert Glass was not on location for the entire time and did not direct or supervise the plaintiff’s work. Justice Braun of New York County granted our motion for summary judgment dismissing the Labor Law claims, as well as the general negligence claim against Alert Glass. The decision was appealed by both the plaintiff and the co-defendants, who argued that Alert Glass was a statutory agent of the general contractor and thus, liable under the Labor Law. The Appellate Division rejected the arguments of opposing counsel and upheld the dismissal in favor of Alert Glass. No further appeals are expected.
MSSSV Partner to Speak at Insurance Coverage Seminar
Mike Miranda will be speaking on May 17th at the New York State Bar's Annual Insurance Coverage Seminar. He will be explaining the benefits and pitfalls of litigating Declaratory Judgment actions. Details and registration information can be found here.
MSSSV Partner to Speak on Police Liability Claims
On March 5th, Mike Miranda will be speaking on excessive force and false arrest claims. He will focus on the Federal police cases arising under 42 USC 1983. The brochure is here.
MSSSV Wins Major Land Use Case in 2nd Circuit
In 49 WB v the Village of Haverstraw, a unanimous Second Circuit Court of Appeals rejected a developer's attempt to create section 1983 liability in an admittedly failed condemnation process. The plaintiff-developer relied upon a scathing State court appellate decision, which had found no rational public purpose for the municipality's condemnation, and thus invalidated the entire condemnation. The Federal court , however, explained that it applied a much more rigorous standard, i.e. egregious conduct. As such, the Village's good faith during the condemnation process was relevant and led the Circuit to reject plaintiff's claims of a substantive due process violation.
The February 4th, 2013 decision is found here.
MSSSV Wins Property Rights Dispute Between Developer and Village on Summary Judgment
In Kowalczyk and Pericic v. Village of Monticello et al., Judge Ramos of the Southern District in White Plains granted defendants’ cross-motion for summary judgment, dismissing plaintiffs’ substantive due process and equal protection claims in their entirety. Invoking the doctrine of ripeness, the Court held that the plaintiffs failed to exhaust their administrative remedies by seeking an appropriate variance (as to Kowalczyk) and special use permit (as to Pericic) to legally develop their properties before commencing a Federal Civil Rights lawsuit. Westchester Partner Richard S. Sklarin successfully represented the Village and its officials.
A copy of the Court’s well-reasoned 21 page Opinion and is found here.
MSSSV Wins Article 78 and Bankruptcy Hearing for Nassau County Village
In Salazar v. Village of Atlantic Beach, the Village Board made a determination that the plaintiff's building was unsafe and demolition of the structure was required. Prior to the demolition, plaintiff filed for Chapter 11 Bankruptcy in the Bankruptcy Court, Eastern District of New York in an effort to stay the demolition. We successfully convinced the Court that the bankruptcy stay did not apply to a municipality exercising its police power for the public benefit. Thus, the Village proceeded with the demolition. Subsequently, the plaintiff filed a motion seeking sanctions and a contempt finding against the Village for proceeding with the demolition. We successfully defended the Village against the sanctions and contempt application, which the Court denied.
The plaintiff also filed an Article 78 petition in state Court seeking a declaration that the Village's determination was arbitrary, as well as monetary damages for the value of the demolished building. Based upon our briefing, the Court denied the requested relief on Res Judicata grounds. The decision can be found here.
Michael A. Miranda, Maurizio Savoiardo and Robert Hewitt worked on the case.
MSSSV Defeats Family Medical Leave Act claim
In McGuiness v East/West Industries, the plaintiff alleged that he was fired in retaliation for taking a family medical leave of absence to care for his severely ill child. Judge Wexler granted our motion for summary judgment and dismissed the complaint. We were able to successfully convince the court that the claimant did not have an ongoing open ended right to family medical leave and that the claimant’s employment was terminated as a result of poor attendance and an economic slowdown. The decision can be found here.
Michael A. Miranda and Maurizio Savoiardo defended the case.
MSSSV Wins Another Civil Rights Case
In 49 WB v. The Village of Haverstraw, et al., Federal Judge Vincent Briccetti dismissed all claims against the Village of Haverstraw arising from a failed condemnation against a developer. Specifically, the Federal case stemmed from a New York State Appellate Division decision that invalidated the Village’s efforts to condemn plaintiff’s building. However, the Appellate Division, while rejecting the condemnation, squarely held that the Village’s actions were not in bad faith. As such, Federal Judge Briccetti held that the Federal claims did not lie premised upon the State Court’s findings and the extensive discovery conducted in the case before him. The case is found here. 49 WB v. The Village of Haverstraw.
Michael A. Miranda and Gerald C. Waters, Jr. successfully defended the Village and its officials.
MSSSV Gets Reimbursed $9,000 After 3 Week First Amendment Trial
We won a defense verdict for the Village of Lloyd Harbor & its officials in a hard-fought 3 week First Amendment retaliation lawsuit. (See Firm News March 2011) Now, Eastern District Judge Kathleen A. Tomlinson has awarded the Village over $9,000, representing its costs in obtaining transcripts of the plaintiff's deposition and trial testimony. The Federal Judge found that the complexity of plaintiff's claims involving seven (7) alleged acts of retaliation over a period of three (3) years required MSSSV to obtain the transcripts and that the plaintiff must reimburse the Village for those costs. Bartels v Village of Lloyd Harbor.
Michael A. Miranda tried the case, with able assistance from Kelly C. Spina.
MSSSV Wins Co-Insurance Coverage Dispute
In Philadelphia Insurance Company v. Harleysville, we recently prevailed on a co-insurance dispute after a $350,000 jury verdict was rendered that another insurer refused to share. The other insurer also refused to contribute to any defense-sharing. The other insurer argued that Philadelphia was somehow estopped from claiming its co-insurance rights because it had allowed the matter to go into default as to a co-insured managing agent. In actuality, as we pointed out, the default was originally vacated by the trial court only to be reversed by the Second Department. As such, independent factors caused the default- -not the claims handling of our client. The Court thus applied the co-insurance equivalent shares rule as both insurers had identical “other insurance” clauses. A copy of the decision is available here.
Michael A. Miranda and Anne K. Zangos presented the winning arguments on summary judgment.
MSSSV Defeats Domestic Violence Discrimination Claim
In one of the first cases interpreting the new State law prohibiting discrimination against domestic violence victims, MSSSV successfully represented a medical practice. The employee asserted that she was discriminated against when she was placed on an unpaid sixty day leave after having missed substantial time due to an ongoing divorce proceeding. At a Hearing before an Administrative Law Judge, we were able to demonstrate that the employee herself was not a victim of domestic violence as required by the statute and thus she was not a member of the protected class, and that, even if she had been, her employer had no knowledge of her alleged status. Simply stated, an employer's knowledge of an employee's divorce is not tantamount to knowing she was a domestic violence victim. A copy of the decision is here. Michael A. Miranda and Robert Hewitt worked on this matter.
MSSSV Wins Disability Discrimination Case on Summary Judgment in State Court
MSSSV successfully represented People Care, Inc. against a claim of disability discrimination in the Supreme Court for Suffolk County. People Care, a well established and respected home health care agency, was accused by a former employee of terminating her employment based on her "acute asthmatic bronchitis." We argued that plaintiff's "disability" was not covered under the New York State Executive Law as it was a mere winter illness, which had no substantial effect on the plaintiff. The Court further found that plaintiff's supervisor had no knowledge of the alleged disability and terminated her solely based on insubordination.
Michael A. Miranda, Maurizio Savoiardo and Gerald C. Waters, Jr. worked on the case.
MSSSV Wins First Amendment Case On Summary Judgment in State Court
MSSSV successfully represented the Great Neck School District & its officials against a claim of First Amendment retaliation. In Stevenson v. Great Neck, et. al., a member of the grounds crew alleged he was forced to resign after he complained to District officials about theft of supplies and alleged drug use by his co-workers.
MSSSV successfully argued that the employee resigned when he was confronted for selling prescription drugs and on the basis that the employee’s speech was not protected by the First Amendment. Justice Karen A. Murphy of the Supreme Court for Nassau County wrote the decision. Mike Miranda, Maurizio Savoiardo and Kelly Spina worked on the case. No appeal was taken.
MSSSV Partner Featured at Seminar on "Coverage for the Electronic Frontier:Social Media & Blogging"
Michael Miranda is speaking on coverage for social media at the 2011 State Bar seminar on Insurance Coverage. He will be speaking on May 14th at the Long Island location. Link to Brochure.
Defense Verdict for Village of Lloyd Harbor in First Amendment Trial
After a grueling three-week trial, a Federal jury found for the Village of Lloyd Harbor; its police department and a number of its public officials in Bartels v Lloyd Harbor et al; 08 cv 12546. Plaintiff claimed that he had been retaliated against because he constantly exercised his first Amendment rights in the Village. This included speaking out at Village Board meetings; erecting a 4x8 sign protesting the Mayor's policies; and taking photographs of dangerous conditions in the Village. Based on his protected First Amendment activities, plaintiff asserted he was arrested; forced to take down his sign; and often threatened and intimidated by the Village police force.
MSSSV was able to persuade the jury that the Village had reasons to restrict his speech, namely to maintain order at meetings and the safety of its roads as plaintiff was causing concerns for motorists. As one would expect, the case garnered considerable media attention; and a March 24th Newsday article is here.
Michael A. Miranda and Kelly Spina tried the case for the firm.
MSSSV Defeats Pregnancy Discrimination Claim
In January of 2011, MSSSV successfully represented the Port Chester School District against claims of pregnancy discrimination. We were able
to show not only a history of accommodation of pregnancies at the
District, but we also fleshed out an incident with a non-party which
served as the legitimate non-discriminatory reason for the teacher's termination--after she had been informed she would be coming back for an additional year of teaching. MSSSV attorneys Michael A. Miranda and Robert Hewitt worked on this matter.
MSSSV Wins Product Liability Case On Summary Judgment
In November 2010, in Fisher v. Multiquip Inc., et al., pending in Franklin County New York, the plaintiff had sustained an amputation injury to his dominant hand while performing maintenance of a concrete pump. With less than 30 days before the jury trial was to start, MSSSV prevailed on its summary judgment motion that the concrete was not defectively designed, contained adequate warnings and that the sole proximate cause of the accident was plaintiff’s conduct. This matter was handled by Neil L. Sambursky.
MSSSV Wins Construction Accident Case On Summary Judgment
In October 2010, in Daniel Simone v. Liebherr Cranes, Inc. et al., pending in Kings County, New York, MSSSV represented Bay Crane Service Inc., in a case involving the amputation of a crane “oilers” leg which was caught in the rotating crane superstructure. MSSSV obtained summary judgment in favor of Bay Crane on all claims asserted against it. This matter was handled by Neil L. Sambursky and Michael P. Siravo.
MSSSV Wins Federal Employment Discrimination Case on Pre- Answer Motion
In Dellate v Great Neck, the Federal court granted our pre-answer motion in an employment discrimination case. The plaintiff had asserted various free speech retaliation and due process claims, but the Court rejected each in its thorough, well-reasoned decision. Michael Miranda and Maurizio Savoiardo worked on the case.
MSSSV Wins Appellate Reversal in Major Municipal Property Damage Case
In August of 2010, the Appellate Division, Second Department, agreed with MSSSV’s position that plaintiffs were required to file a Notice of Claim for “equitable claims” regarding the re-construction of a large wall. While typically equitable claims do not require such compliance, we persuaded the Appellate Court that the equitable and monetary claims were inseparable. The Court thus dismissed all claims in this high exposure property loss. Michael A. Miranda and Kelly Spina of MSSSV successfully handled the case. Mendik v. Village of Lattingtown, 2010 WL324544 (2d Dep’t August 2010).
Towing Denial Not Unconstitutional
MSSSV won an Article 78 proceeding, which also sought damages, based on the allegedly unconstitutional denial of a towing license and franchise agreement. In Autotech Collision, Inc. v. The Incorporated Village of Lynbrook, et al., the Second Department upheld the Village’s denial premised upon the towing company’s frequent violations of the Village Code. The towing operator further claimed that the Village had selectively enforced the Village Code. The Second Department rejected the towing operator’s claims of selective enforcement and held that the denial was supported by substantial evidence in that the Village reasonably considered the plaintiff’s Village Code violations. Michael A. Miranda and Ron Ben-Bassat defended the Village. Autotech Collision, Inc. v. Incorporated Village of Lynbrook, 76 A.D.3d 559, 906 N.Y.S.2d 507 (2d Dep’t 2010).
Village Permitted to Sell Beach Property
The Supreme Court, Nassau County, rejected the claims of a disgruntled landowner seeking to annul the Village’s discretionary decisions to sell prime waterfront land to a developer and to grant that developer a building permit. In so holding, the Supreme Court found that the Village’s decisions were entirely rational, and dismissed the petition. Michael A. Miranda and Kelly C. Spina represented the Village. Levine v. Inc. Village of Island Park, (Supreme Nassau August, 2010).
MSSSV Wins Contract Dispute Between Developer and Village
MSSSV won a tort/contract action commenced by a developer against the Village of Babylon and its officials, seeking to renew a revoked building permit as well as for monetary damages for the alleged lost value of the property.
In Racanelli v. The Village of Babylon, the developer sought damages sounding in contract, estoppel, violation of its due process rights and intentional/negligent misrepresentation arising from the Village’s revocation of a building permit and issuance of a stop work order.
The court held that the developer’s due process claim was ineffective since the developer failed to prove that it had obtained a property right in the permit, as no substantial work was done on the property. Additionally, the developer’s claim for unjust enrichment was dismissed due to the existence of a contract between the developer and the Village. Finally, the court also dismissed the action as to the Village based on the long-standing rule that a claim for estoppel will not lie against a Village absent a showing of bad faith.
Michael A. Miranda, Maurizio Savoiardo, and Ron Ben-Bassat worked on this matter. (Racanelli v. Village of Babylon et al, Supreme Suffolk: Judge Molia, August ,2010)
MSSSV Defense Verdict in Developer's Civil Rights Action
After a two week trial, a Rockland County jury rejected a developer’s claims that he had been stymied in his development of a large subdivision. The developer claimed, in a hard-fought 10 year battle, that the Village of Pomona had repeatedly and illegally asked for money in lieu of the donation of parkland. The developer thus sought damages for a substantive due process violation under 42 U.S.C. 1983. The case was modeled on the famous Magee v Orangetown $5.3 million verdict.
The jury, however, refused to accept plaintiff’s claims against Pomona as there was proof plaintiff developed other portions of the subdivision, and ultimately sold the portion at issue.
Michael A. Miranda and Gerald C. Waters tried the case for the Village and its named officials.(Summit at Pomona et al v Village of Pomona et al., 1949/00 Hon. Robert Berliner 4/20/10)
MSSSV Starts 2010 With A Win
MSSSV won a coverage action in the Northern District of New York. In Assunta, Inc. v. Penn-America Insurance Company, the Federal Court ruled that Penn-America was not obligated to defend and indemnify its insured because of a 39 day delay in notifying the insurer of the accident.
Michael A. Miranda and Ron Ben-Bassat worked on this matter. No appeal is anticipated.
MSSSV Wins Employment Case
In Saquib v. Stein DeVisser, Judge Garaufis of the Eastern District granted our motion in a retaliatory termination case brought under Title VII. The court concluded that plaintiff could not demonstrate that he was terminated as a result of his protected class status. The court also found that the conduct by plaintiff’s co-workers was not sufficiently severe so as to demonstrate a hostile work environment. The court also found that the retaliation claim was subject to dismissal on the basis that he was not engaged in protected activity.
An appeal has been taken to the Second Circuit.
MMSSSV Obtains Summary Judgment for Bronx County Landlord/Owner in Fireman’s GML 205-a Claim
In October, 2009, the Supreme Court, Bronx County, granted MSSSV’s motion seeking summary judgment on behalf of their client, a building owner, in a personal injury action by a firefighter. The fireman had suffered career ending injures while extinguishing a fire within the insured’s building. The lawsuit alleged common law negligence, as well as liability premised upon GML 205-a, which entitles firefighters and police officers to recover for injuries sustained within the “line of duty” if they are "proximately caused" by an identified and proven statutory violation.
In support of summary judgment, we established that the plaintiff failed to prove that the numerous Building and Administrative Code violations, as well as Multiple Dwelling Law violations, were the "proximate cause” of his accident, which occurred when he fell through a hole in the floor of the tenant's fried chicken restaurant. The motion was also premised upon the fact that plaintiff, as well as two non-party firefighter witnesses, failed to establish that the restaurant floor contained holes and, if proven, the owner had notice of the condition before the fire. Finally, we persuaded the Court that plaintiffs’ expert affidavit, submitted to establish that violations existed before the fire and were the proximate cause of the firefighter’s injuries, was purely speculative since the expert did not inspect the building and relied upon the same discovery before the Court to reach his cursory conclusions.
MSSSV Name Partners to Speak at State Bar Seminar for Claims Professionals in October
On October 23rd, name partners Michael Miranda and Steven Verveniotis will be speaking in Long Island at the New York State Bar Association’s “Law School for Claims Professionals.” The seminar will have a different set up this year with workshops conducted by the speakers to enable greater interaction with the audience. This is an excellent opportunity for claims people to learn about New York law. Further information can be found at www.nysba.org.
MSSSV Name Partner to Speak on Insurance Coverage Litigation
On September 23rd, MSSSV name partner Michael A. Miranda will be speaking at the Melville Marriott on Long Island on Insurance Coverage Litigation. Specifically, he will be speaking on the topic of litigating the insurance coverage claim from nuts to bolts. Information regarding the seminar can be found at www.nbi-sem.com for the seminar “Insurance Coverage Law” or at 800-930-6182.
MSSSV Again Chairs State Coverage Seminar on Construction Losses
MSSSV was chosen for the third consecutive year to Chair the New York State Bar Association’s Annual Insurance coverage Seminar in Manhattan. This year’s seminar, held in May, focused on the Insurance implications of construction risks such as contractual indemnification; additional insured coverage; and priority of coverage. The seminar was sold out and featured MSSSV name partners Michael A. Miranda and Neil Sambursky.
MSSSV Obtains Summary Judgment in Federal Discrimination and Retaliation Lawsuit
In April of 2009, the Appellate Division, Second Department, agreed with MSSSV’s position asserted on behalf of the municipal respondents, thereby reversing the findings of the lower court and dismissing the petitioner’s Article 78 petition in its entirety.
In sum, the appellate court found that the respondent Fire Council’s decision to terminate the petitioner’s membership in the Fire Department was not so disproportionate to the offense to shock one’s sense of fairness. In this regard, the appellate court agreed that the petitioner engaged in a willful course of conduct in which he failed to follow departmental policy and sought to cover up his actions by fabricating documents and deceiving his supervisor. Accordingly, the appellate court found that Article 78 petition seeking reinstatement of petitioner’s membership in the Fire Department warranted a dismissal on the merits.
Kelly Hobel of MSSSV presented the successful appeal.
MSSSV Obtains Summary Judgment in Federal Discrimination and Retaliation Lawsuit
Agostinello v. Great Neck Union Free School District, E.D.N.Y. Docket No. 05-CIV-5838: In February of 2009, Magistrate Judge William D. Wall of the United States District Court for the Eastern District of New York granted MSSSV’s summary judgment motion on behalf of the defendant Great Neck School District (the “District”), thereby dismissing plaintiff’s claims under both federal and state law. A copy of the Court’s 36 page decision may be found by clicking here.
Plaintiff, a former janitor for the District, alleged violations of Title VII of the Civil Rights Act, the Americans with Disabilities Act (“ADA”), and New York State Executive Law § 296. Essentially, plaintiff argued that the District: 1) did not consider him for the position of Assistant Head Custodian; 2) permitted a hostile work environment to exist; and 3) denied his request for a reasonable accommodation relating to an alleged back injury.
In granting the District’s motion for summary judgment, the Court found that the District presented sufficient evidence that the failure to promote was based on plaintiff’s improper behavior, poor judgment, and deficient interpersonal relationships. Plaintiff failed to provide any evidence to rebut the District’s legitimate, non-discriminatory reasons in this regard and, therefore, could not support his racial/national origin discrimination claims.
Additionally, the Court rejected plaintiff’s hostile work environment claim, finding that his resignation from the District was voluntary and not a constructive discharge. Additionally, plaintiff could not establish a retaliation claim as there was an insufficient temporal proximity between the purported protected activities and the alleged retaliatory discharge.
With regard to the disability discrimination claims, the Court agreed that the plaintiff could not show an impairment that substanitally limited a major life activity as required by the ADA, or that the District regarded plaintiff as disabled within the meaning of the ADA. Accordingly, the disability discrimination claims failed as a matter of law.
MSSSV Obtains a Defense Verdict in a Religious Discrimination/Retaliation Claim
Bates v. Fund for Community Leadership & Development, Inc., NYSDHR Charge No. 10115830: Following a trial before Administrative Law Judge Thomas J. Marlow, the Court found in favor of MSSSV’s client, a not-for-profit entity which operates community youth programs.
Plaintiff, a former program facilitator for the not-for-profit organization, filed a charge of discrimination with the New York State Division of Human Rights alleging that the termination of his employment was because of his religious affiliation and his refusal to attend worship services. The defendant employer vehemently denied the allegations and proceeded to a trial.
At trial, the employer was able to demonstrate that the decision to terminate plaintiff’s employment had nothing to do with plaintiff’s religious beliefs. In fact, plaintiff’s own written reports were used to demonstrate that the termination was due to a failure to engage the community and develop the program as his position required.
Moreover, on cross-examination, plaintiff confirmed that he did not truly believe that his faith had anything to do with his termination. Rather, plaintiff was angry that he was being asked to perform responsibilities for on what he felt was his own personal time.
Brooklyn Jury Finds for Insurer in Coverage Dispute
Tim Murphy obtained a defense verdict in Kings County on December 9, 2008 in an insurance coverage case. Plaintiff alleged that the defendant insurance company had not served her with a due demand for a sworn proof of loss statement and euo in connection with her claim for approximately $500,000 in water/mold damage. Plaintiff further argued that the due demand letter allegedly served by the insurance company’s prior outside counsel was made on behalf of the wrong insurance company. The proof of mailing of the due demand and the prior counsel’s file had been destroyed. This resulted in a missing evidence jury charge.
But the Kings County jury still found in favor of the insurance company based on Tim’s skillful cross of plaintiff-policyholder.
Defense Verdict in The Bronx!
Timothy Murphy obtained a defense verdict in Bronx County on September 26, 2008 in a construction accident case. Plaintiff alleged that the defendants placed sheetrock in an unsafe manner. It was claimed that approximately 1,500 lbs of sheetrock had fallen on plaintiff’s leg. Plaintiff sustained a tibial plateau fracture which resulted in two (2) surgeries, one (1) which necessitated insertion of hardware. Plaintiff also claimed that he needed a full knee replacement. Neverthless, the Bronx jury found for the defendants represented by MSSSV Of Counsel Tim Murphy.
MSSSV Westchester Partner Richard Sklarin to Speak on Automobile Liability Issues and Trends
Richard S. Sklarin, Resident Partner of MSSSV’s Westchester office, has been invited to speak on September 19, 2008 at the Law School for Claims Professionals being held in Hauppague, Long Island and co-sponsored by the Torts, Insurance and Compensation Law Section of the New York State Bar Association. Rich will be speaking on Automobile Liability Issues and Trends during the all day seminar, which also includes an overview of premises liability, liens and subrogation, indemnification and defense obligation issues, notice and bad faith developments. Further information is available on the seminar at nysba.com.
MSSSV Once Again Sponsors Jack's Run for Autism Awareness - June 7th, 2008
MSSSV is again the primary sponsor of JACK’s RUN for AUTISM AWARENESS, a 5K walk/run in Mineola on June 7th, 2008. All proceeds go to Nassau Suffolk Services for Autism (NSSA) - an organization that provides services to school districts across Long Island. This year, you can simply use the link below to donate, register or just learn more about this disease, which afflicts 1 in 150 of our children. http://www.firstgiving.com/nssa.
MSSSV Wins First Amendment School Speech Case
In Cuff v. Valley Central School District, et al., the parents of a fifth grade student challenged the school district’s decision to suspend their son from school after the student had communicated a threat to “blow up the school with the teachers in it.” Judge William C. Conner of the United States District Court for the Southern District of New York granted our pre-answer motion to dismiss the matter on behalf of both the school district and the teacher who received the threat, thereby dismissing the federal civil rights claim in its entirety.
The Court agreed with our contentions that the defendants could reasonably conclude that the student’s speech would substantially disrupt the school environment and the resulting decision to discipline the student was lawful and proper. Charles Martin of MSSSV represented the defendants in the litigation.
MSSSV to Again Chair State Bar Coverage Seminar
MSSSV has again been chosen to chair The State Bar’s annual Insurance Coverage Seminar, this year in New York City. This year’s program, eerily titled “CAN THE COMMERCIAL LIABILITY POLICY SURVIVE ?”, will be held in Midtown Manhattan on Tuesday April 29th. The seminar will discuss the pending legislation regarding the abolition of the no prejudice rule for late notice disclaimers; how to timely disclaim; additional insured and co-insurance issues; and much more. For further information, please go to www.nysba.org.
MSSSV Partner to Address Pending Late Notice Legislation
On September 28th, Michael Miranda will speak at the National Business Institute’s Insurance Law seminar on “Recent Legislative and Caselaw Developments” The topic is of particular import to the Insurance Community this year in view of the pending Legislation to eliminate the no–prejudice rule as to Late Notice of Claim . Although Governor Spitzer recently vetoed a hastily–passed bill by the Legislature, he directed a comprehensive study of the issue with an eye towards re-introduction of the Bill. The speech will be at the Wingate Inn in Garden city. Please go to www.nbi-sems.com for registration and further details.
Directed Verdict in Brooklyn for MSSSV
In a trip and fall on construction debris, MSSSV secured a directed verdict in Supreme Kings.
During the trial, the parties attempted to show that our client acted as a general contractor for the “gut” renovation project taking place at the building, and that we were on notice of a recurrent condition. Through cross examination, we were able to show that the insured’s involvement with the project, despite hiring some of the trades and paying them directly, was minimal, and that he did not supervise, manage or control the various trades conducting work at the jobsite. In fact, he had no employees at the jobsite at any time during the construction.
At the conclusion of the proof, we moved for a directed verdict arguing that we did not direct, supervise, manage or control the work taking place at the jobsite, did not create the alleged condition, and were not on notice of the alleged condition. After hearing argument, Judge Knipel granted our motion.
The verdict subsequently came in at $250,000. Mike Longo of MSSSV Westchester tried the case.
MSSSV Partners Michael Miranda and Ondine Slone Organize Successful 5K Run for Autism Awareness and the NSSA
Jack’s Run had its inauguration on June 9th at Wilson Park in Mineola. The 5K run/walk was inspired and organized by Michael Miranda and his wife Ondine Slone, partners at the law firm Miranda Sambursky Slone Verveniotis LLP. Their nephew Jack, for whom the race was named, is a 13 year old student with autism. Jack attends NSSA’s Martin C. Barell School. The race was planned to raise awareness of autism and to benefit NSSA. Read the full story HERE.
MSSSV Wins Federal First Amendment Trial for Long Island School District
In Caruso v. Massapequa UFSD, the plaintiff was a probationary elementary school teacher who alleged that she was forced to resign in the middle of her second year in retaliation for her political speech. She claimed to have been very active in Republican politics and the campaign to re-elect President George W. Bush in 2004. She focused on an incident, during election time in 2004, when she was asked to either remove a lone photograph of President Bush from her classroom chalkboard or to accompany it with a photograph of Presidential candidate John Kerry.
Two MSSSV Partners Featured at Insurance Coverage Seminar
Michael A . Miranda and Neil L. Sambursky will be speaking on May 18th at the NY State Bar Seminar: Insurance Coverage 2007-Focus on First Property Coverage Issues. The seminar will be at the Huntington Hilton in Suffolk County, Long Island. Agenda | Faculty | Flyer and Registration
MSSSV wins Summary Judgment in Malicious Prosecution Case for the City of Glen Cove
In Rush v. City of Glen Cove, plaintiff alleged that he was targeted by the City of Glen Cove Police Department based upon racial profiling and his prior criminal history. Following his arrest, he spent nearly seven months in jail before the charges were dismissed. Judge Woodard of the Nassau County Supreme Court determined that the information presented to the City of Glen Cove Police Department, by the crime victim and an eyewitness, provided the police with probable cause to arrest and prosecute him and she dismissed the case.
MSSSV Obtains Victory In Maryland Court of Special Appeals, Affirming Summary Judgment In Favor Of Insurer
In Wiley v. Zurich, the plaintiffs in a catastrophic medical malpractice action received an assignment of rights in order to prosecute a declaratory judgment against Zurich seeking to recover multiple limits of liability under a professional liability insurance policy issued by Zurich. MSSSV partner, Neil Sambursky, won summary judgment in favor of Zurich at the trial level in Prince George’s County, Maryland. Mr. Sambursky then prevailed in the ensuing appeal to Maryland’s highest court, which in February 2007, affirmed judgment in favor of Zurich and saved the company over $1 million.
Second Circuit Upholds Dismissal of Racial Retaliation Suit
In the Lynn case,discussed in Firm News last year,the Second Circuit affirmed summary judgment to the Rockland County Village of Pomona(and its officials) in a racial discrimination and retaliation matter. The Second Circuit refused to allow the revocation of a building permit to avoid dismissal of the retaliation claim,as "the Village officials applied the same level of scrutiny to the development…before and after the HUD complaint".
MSSSV is Pleased to Announce the Opening of its Westchester Office, and the Addition of a Partner
Rich Sklarin will head the Westchester office. Rich has 15 years of insurance defense experience, ranging from liquor liability to labor law. He is a Phi Beta Kappa graduate of the State University at Albany who received his law degree from St. John's,where he was a member of the Moot Court Board.
These additions will enable MSSSV to continue to service its clients in a swift, cost-effective manner -- which has been its mission since 1998.
MSSSV Wins Employee of Contractors Exclusion Case in New Jersey
In Tri-State v. Mount Vernon, MSSSV successfully argued that the employee of contractors exclusion should apply to a catastrophic construction site accident. The case was venued in Essex County, New Jersey. Superior Court Judge Alfonse J. Ciffelli found not only that the employee exclusion for contractors' employees was unambiguous, but that the insurer should not be estopped from covering this loss. The insured owner had argued that the policy was ambiguous becaause of the deletion of an independent contractors exclusion prior to the issuance of the policy. The court disagreed and no coverage was found for the $1 million commercial liability policy. This appears to have been a matter of first impression in New Jersey. Michael A. Miranda and Eric Stern represented the insurer in the case.
MSSSV Obtains Summary Judgment On Plaintiff's Claim of Tortious Interference With An Employment Agreement
In Gibson v. Urban Resource Institute, et al., a former employee of a not-for-profit organization providing drug treatment programs in the inner-city communities of New York sued the corporate entity, as well as its President and Senior Vice-President, alleging a claim of tortious interference with his employment agreement. Supreme Court Justice Dabiri in Kings County granted MSSSV's summary judgment motion in its entirety, dismissing plaintiff's claim against all defendants. In this regard, Judge Dabiri rejected plaintiff's argument that the defendants terminated plaintiff for personal gain and/or to cause plaintiff harm. MSSSV Associate To see a copy of the decision, click here.
MSSSV Wins Defense Verdict for School District in Racial Case
In a lengthy Federal trial, a Westchester jury returned a defense verdict in favor of MSSSV's client, the Putnam Valley Central School District. The plaintiff, an African-American woman, claimed that she had been singled out by white administrators for reprimand. The jury disagreed, and dismissed plaintiff's hostile environment claims. The decision can be found by clicking here.
MSSSV Again Chairs State Bar Insurance Seminar
On May 19th, the firm will again chair a NY State Bar Insurance Coverage seminar. It is entitled Commercial Lines: Coverage for the Construction Defect Claim. Mike Miranda and Neil Sambursky will be featured speakers, and Mike will moderate the topics ranging from the Labor Law to Mold to Ethics. The program will be held in Uniondale, Long Island and details can be found by clicking here.
MSSSV Wins Summary Judgment on Racial Retaliation Federal Suit
In Davis v Oyster Bay-East Norwich School District et al., racial discrimination claims were dismissed on summary judgment in a termination claim. Federal Judge Feuerstein also found unpersuasive the plaintiff-stenographer's claims of retaliation and violation of the ADA. Significantly, the court found that simply because plaintiff was the only African-American stenographer did not prove pretext sufficient to get her case to a jury. Nor was the undisputed fact that she was replaced by a Caucausian enough. Steven Verveniotis skillfully defended the case for the District and its officials against a very experienced adversary. To see a copy of the decision, click here.
Municipal Defense Verdict by MSSSV Partner Rings In 2006
Ondine Slone again got a defense verdict, this time for the Village of Great Neck in a prior written notice case. The plaintiff dramatically changed her testimony at trial to attempt to conform to a prior written notice actually received by the Village at the same location. The Judge disagreed, finding their plaintiff incredible, no doubt due to Ms. Sloneâ€™s cross-examination. The Court found that the Village did not receive prior notice of this specific location, and thus the other notice was irrelevant.
MSSSV Partner Wins Defense Verdict for Insurer in Fire Case
Ondine Slone persuaded a jury that a landowner failed to maintain smoke detectors in each apartment in accordance with its contractual duty. Although the landlord claimed he gave smoke detectors to each tenant and that rogue tenants beyond his control disabled them -- leading to the fatal fire --, Ms. Slone marshaled expert and investigative testimony to save her client a 6-figure fire loss.
Neil Sambursky to speak at New York State Bar Association Seminar on October 14, 2005.
The New York State Bar Association will present a seminar titled "2005 Update and Overview of Premises Liability." MSSSV partner Neil Sambursky will lecture on the topic of "Exterior Premises Liability." Details, including the CLE credits, exact location, time and ticket prices, will be made available through the New York Bar Association and at its web site: www.nysba.org.
MSSSV Wins Fair Housing Action for Rockland Village: Claims of Racism and Retaliation Dismissed
In a decision that preserved the intent of the Fair Housing Act, as well as the spirit of a small Rockland Village, Federal Judge William Conner recently dismissed a racially divisive suit.
The case was initially brought by a white builder and an African-American couple, who claimed that the Village's zoning laws were applied one way when black buyers were involved, and another when whites bought. Although headline-grabbing, the allegations were rejected by the Federal Court for two (2) reasons.
Firstly, the white buyers were treated just as strictly as the black buyers were. The court recognized that the Fair Housing Act did not obliterate local zoning rules and planning board authority simply because a developer cried race.
Secondly, the builder's claims of retaliation were rejected because there was no change in the way the builder conducted his business after he played the race card. The fact that the builder kept building and selling homes suggested to the court that there was no retaliation .The court thus found that the threshold element of adverse circumstances due to the retaliation was not met.
As for the African-American couple who were initially part of the case, they dropped out when it became clear that they had been added to the case without their formal consent.
The developer had claimed damages in excess of $5 million.
Steven Verveniotis to speak at New York State Bar Association Coverage Seminar on April 29, 2005.
The New York State Bar Association will present a seminar titled "2005 Insurance Coverage Update â€“ Personal Lines and Bad Faith" in various locations, including a Long Island presentation on April 29, 2005. MSSSV partner Steven Verveniotis will lecture on the topic of "Significant Tort and Coverage Cases - The Last Six Months." Details, including the CLE credits, exact location, time and ticket prices, will be made available through the New York Bar Association and at its web site: www.nysba.org.
MSSSV Wins False Arrest Case for Town of Cornwall
In Lundgren v. Town of Cornwall, the plaintiff was arrested for shooting a pit bull with a 9 millimeter handgun after it attacked his dog in his backyard. His claims for false arrest and malicious prosecution were dismissed by the Court upon our showing that the shooting was unnecessary and the arresting officers had probable cause, as related to the police by the eyewitnesses at the scene.
Steven Verveniotis to speak at New York State Bar Association Professional Liability Seminar on March 11, 2005.
The New York State Bar Association will present a seminar titled "Avoiding and Defending Legal Malpractice Actions" in various locations, including a Long Island presentation on March 11, 2005. MSSSV partner Steven Verveniotis will lecture on the topic of "Avoiding and Defending Legal Malpractice Actions." Details including the CLE credits, exact location, time and ticket prices, will be made available through the New York Bar Association and at its web site: www.nysba.org.
MSSSV Wins Two Discrimination Cases for Westchester Village
In Gordon v Tuckahoe, M & S successfully defeated claims of racial discrimination on summary judgment. An African-American contractor had asserted that he was unfairly denied a permit, costing him a lucrative contract. The court dismissed these claims in their entirety based upon our showing that the contractor was not properly licensed to perform the work.
In O'Bradovich v Tuckahoe, residents asserted a Federal claim based on an alleged chilling of their rights to speak out pursuant to the 1st and 14th Amendments. The residents claimed that they had been singled out due to their use of FOIL requests and because they had been sued for defamation by a Village Official. The Federal Court disagreed, finding that the Village official could sue the residents without subjecting the Village to municipal liability under 42 U.S.C. 1983. As to the FOIL issue, the Court found that the residents were not singled out, as compared with other similiarly situated residents.